Are NW Forest Pass Fees Illegal? Hood River attorney aids in fight

February 29, 2012

Ever parked for the day to catch a short hike up Herman Creek or a spur-of-the-moment pilgrimage to the Pacific Crest Trail?

Did you risk the hike without buying your U.S. Forest Service Northwest Forest Pass?

You have company. You may also have the legal right to leave your pass at home in the very near future.

Last month, Portland resident Adi Fairbank opted for the PCT and a three-day backpack - without a Northwest Forest Pass on his windshield. When he got back to the Herman Creek trailhead, he found a fine on his car and himself with a misdemeanor citation.

"I make it a habit of not buying a NW Forest Pass, since I do not believe we should have to pay to access our public lands," said Fairbank when asked if he knew he might be found in violation.

"I have concerns that accessing our own public lands can be called a crime, even a misdemeanor," he added. "I think it is unjust and more importantly, unlawful, which is why I decided to fight it in court."

Fairbank is now working to challenge his citation, received on July 23, in Federal District Court in Portland.

Coincidentally, a local attorney turns out to be Fairbank's best bet to rectify his situation.

Attorney Mary Ellen Barilotti, a Hood River resident, has been leading a fight in several Western states against the USFS's routine practice of requiring federal lands users to purchase passes for access to minimally developed areas.

"We have no problem with people being charged to have access to bathrooms, picnic areas, interpretive signs, developed parking ... Our problem is being charged to have access everywhere on USFS managed lands," said Barilotti.

According to a Feb. 9 ruling issued in the U.S. Court of Appeals for the Ninth Circuit, Barilotti and another attorney successfully argued on behalf of several plaintiffs, that the USFS is prohibited from charging fees in minimally or undeveloped federal lands under its jurisdiction.

Specifically the new ruling - tied to the Mount Lemmon federal recreation area in Arizona - states that the USFS may not charge a fee "for recreational visitors who park a car, then camp at undeveloped sites, picnic along roads or trailside, or hike through the area without using the facilities and services."

Historically, the Forest Service has been issuing and requiring fee-based passes based on their interpretation of "Federal Lands Recreation Enhancement Act" - which provided specific instances when fees might be charged on federal lands.

According to Barilotti, the new ruling negated the USFS interpretation of the Act and the application of their authority to charge in minimally developed areas under their jurisdiction.

"It was the intent of Congress to limit Forest Service authority in charging fees," said Barilotti of the Recreation Enhancement Act.

Federal use passes in Oregon are referred to as the Northwest Forest Pass and cost $30 per year.

The initial citation issued to Fairbank carries a fine between $75 and $100 for first offenders. A change in pass requirements will have long-range implications for forest users and the USFS itself.

"This is not just about the cost of the pass," said Barilotti. "We argued that the Forest Service has exceeded the scope of its authority by charging fees in areas where they are precluded from doing so."

"I also don't think people have paid much attention to the fact that the USFS citations are criminal misdemeanors - with penalties attached," added Barliotti.

The Feb. 9 case involved four visitors' use of a federal recreation area in Tucson, Ariz.; however, the court issuing the opinion serves as the appellate jurisdiction for nearly all western states, including Oregon.

When asked who would be responsible for enforcing this new limitation on USFS fee requirements, Barilotti stated, "They must cease what they are doing. The Western Slope No Fee Coalition will take an active role in following up."

Barilotti also noted that the current Fairbank case, if won, would quicken the enactment of limitations on USFS charges in Oregon.

"Both I and the Western Slope group have been assisting Adi in his pro se motion to dismiss his criminal citation," she said.

Barilotti is also joining with members of the coalition to ensure the new ruling promotes restructuring within the USFS fee system. According to the organization's website, www.westernslopenofee.org, the WSNFC is a nonprofit dedicated to fee-free public lands.

"I hope fighting in court results in the citation being dismissed - as an immediate effect - but in the longer term that it encourages others to not just blindly buy a NW Forest Pass every year, but to stand up for their rights to access their public lands," concluded Fairbank.

Latest video:

Parkdale third graders sing "12 Disaster Days of Christmas"

Welcome to your sing-able Christmas gift list.
What follows is an emergency rendition of “12 Days of Christmas” – for outfitting your home or car in case of snow storm, earthquake, flood or other emergency.
Read it as a simple list, or sing it to the tune of “12 Days” – you know, as in “ … and a partridge in a pear tree…”
Not to make light of it, but the song is a familiar framework for a set of gift ideas that you could consider gathering together, even if the recipient already owns items such as a bunch of coats, tire chains and flashlights. Stores throughout the Gorge are stocked up on all these items. Buying all 12 days might be prohibitive, but here are three ideas for checking any of the dozen off your list (notations follow, 1-12.) The gift items needed to stay warm, dry and safe are also coded to suggest items in your abode (A) in your car (C) or both (B).
12 Gallons of Water (A)
11 Family meals (B)
10 Cans of propane (A)
9 Hygiene bags (B)
8 Packs of batteries (A)
7 Spare coats (B)
6 Bright red flares (C)
5 Cozy blankets (B)
4 Tire chains (C)
3 Flashlights (B)
2 cell phone chargers (B)
1 And a crush-proof first aid kit (B)
Price ranges? Here’s a few quotes for days Three, Two, Four and Nine:
n A family gift of flashlights (three will run $15-30, Hood River Supply, Tum-A-Lum)
n Cell phone chargers (two will run $30-60)
n Tire chains (basic set, $30, Les Schwab, returnable if unused for the winter)
n Family meals ($100 or so should cover the basics for three or four reasonably well-fed days)
n
The home kit should be kept in a handy place near an exit, and remember that water needs to be replenished every few months.
If you have a solid first aid kit already, switch out the gift idea with “and-a-sto-o-u-t- tub-for it-all …”
Otherwise, it’s a case of assembling your home or car kits and making sure all members of the family know what the resources are and how to use them (ie flares and propane).
Emergency situations are at worst life-threatening, at best deeply uncomfortable if you and your family are left without power for an extended period, or traveling and find yourself in a situation where you need to wait out a storm, lengthy traffic delay, or other crisis.
Notes on the 12 gift ideas:
12 – Gallons of water: that’s one per person in a four-member family to last for three days, the recommended minimum to be prepared for utility outages.
11 – Easy-open packaged goods, energy bars, dried food and nuts are good things to include for nutrition. Think of what your family of four needs for three days to stay fortified and hydrated (see number 12). Can-opener also recommended
10 – If you have a propane camping stove, keep extra fuel handy.
9 – Hygiene bags: put packaged moistened towelettes, toilet paper, and plastic ties in large garbage bags (for personal sanitation)
Resource list courtesy of Hood River County Emergency Management, Barbara Ayers, manager/ 541-386-1213.
The county also reminds residents to Get a Kit, Make A Plan to connect your family if separated, and Stay Informed. See www.co.hood-river.or.us to opt-in for citizen alerts. Enlarge